08 Oct SCOTUS Inaction Results in More Same-Sex Marriage

As of September, 17 state attorneys general had joined a “friend of the court” brief asking the U.S. Supreme Court to hear same-sex marriage cases from the Fourth, Seventh and Tenth U.S. Circuit Courts of Appeal. On Oct. 6, the Supreme Court’s response surprised many: No.

The immediate effect of the Supreme Court’s refusal to hear the same-sex marriage cases is that federal lower court rulings striking down bans on same-sex marriages in five states—Indiana, Oklahoma, Utah, Virginia and Wisconsin—will stand, and the stays on implementing those rulings are lifted. Because those federal appeals court rulings are binding on all federal courts within each circuit, the Supreme Court’s action will also impact other states within the Fourth, Seventh and Tenth circuits where lower courts have over turned same-sex marriage bans: West Virginia, North Carolina, South Carolina, Kansas, Colorado and Wyoming—ultimately bringing the number of states where same-sex marriage is legal to 30. Courts in the Fifth, Sixth, Ninth, and Eleventh Circuits are currently considering the constitutionality of same-sex marriage bans. Those circuits are not bound by the lower court rulings in the Fourth, Seven and Tenth; however, the cumulative weight of so many federal decisions favoring marriage equality is almost certain to impact their decisions.

Proponents of same-sex marriage are not universally happy with the Supreme Court’s action, even though the immediate result is that same-sex marriage is legal in more parts of the U.S. than ever. Attorneys for both sides had urged the court to hear the cases and decide the issue once and for all. Evan Wolfson, president of national LGBT advocacy organization Freedom to Marry, called on the high court to “finish the job,” calling the court's refusal to take the cases a prolongation of “the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places.”

Nevertheless, the immediate effect of the Supreme Court’s refusal is that more same-sex couples will be able to marry in the short-term. In some of the five states directly affected by the Oct. 6 Supreme Court action, couples are already applying for marriage licenses. Wisconsin Gov. Scott Walker proclaimed the fight against same-sex marriage “over” in his state, according to an Associated Press report, and said Wisconsin would move forward with implementing it. Virginia Attorney General Mark Herring said same-sex couples could begin receiving marriage licenses almost immediately on the day of the Supreme Court ruling. Other states within the Fourth, Seventh and Tenth Circuits are preparing to petition federal courts to overturn existing state bans.

However, it may take a while for the full effects of the Oct. 6 Supreme Court ruling to play out: The county clerk of Oklahoma’s largest county said he would not begin issuing marriage licenses to same-sex couples until he receives a formal order from the 10th U.S. Circuit Court of Appeals, Associated Press reported. Other states attorneys general may take a similar tact, particularly those that have outstanding cases before the high court, and wait for a specific federal order overturning their same-sex marriage bans.

The Supreme Court’s stance is still far from clear, and its action in refusing to hear the cases was a surprise to many legal observers. As explained in this article from The Atlantic, for most cases, the court has the authority to determine whether it will hear a case or not. The court’s decision, yes or no, is not an opinion one way or another, but simply means that it has opted, for any number of reasons, not to consider the issues involved at the time. In carefully constraining its June 2013 rulings on California’s Proposition 8 to pertain strictly to California and on United States v. Windsor to pertain only to the issue of equality of federal benefits, the Supreme Court avoided ruling outright on the same-sex marriage as a constitutional right. Even with attorneys on both sides of the issue and attorneys general from so many states urging it to make a decision, the court continues to hold back, apparently waiting for the reality of same-sex marriage being lived out in most of the country to make a sweeping high court ruling irrelevant. In this instance, the Supreme Court’s silence perhaps speaks louder than words.

See Lyle Denniston’s SCOTUSblog for an excellent analysis of the Supreme Court action.

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Richard Vaughn

rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

ABOUT IFLG

As a law firm practicing exclusively in fertility law, we are committed to providing you and your family with the highest caliber legal support in all aspects of assisted reproductive technology law, including surrogacy, egg donation, embryo donation, sperm donation, parental rights, non-traditional family formation and second-parent adoption.

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.